For a lot of people, preparing for the worst-case scenario seems to slip down their list of priorities. This might happen for a number of reasons. Some people do not like to think about unfortunate circumstances happening to them and therefore do not plan accordingly, others decide that they will ‘get around to it later’, and others still assume that their loved ones are aware of their wishes and will carry them out when they pass away or cannot make decisions for themselves.
Unfortunately, unforeseen issues can arise when a person passes away without a Will or loses capacity to make decisions without having appropriate arrangements in place.
In Queensland, where a person passes away without leaving a valid Will, they are said to have died ‘intestate’. When a person dies intestate, Queensland legislation sets out who will be entitled to act as personal representative of the deceased’s Estate and how the Estate will be divided. The rules of intestacy, however, do not take into account a person’s particular needs and circumstances, and they might not necessarily accord with how a person would have wanted their estate to be divided had they made a valid Will.
It is also possible for a person to appoint someone as their attorney under an Enduring Power of Attorney. This is a document that allows somebody else to make decisions on a person’s behalf in certain circumstances, such as when they lose capacity to make those decisions for themselves. In our experience, people can fall into the trap of assuming that their spouse, children or other relatives will automatically be entitled to make decisions on their behalf if they are unable to do so themselves. However, this is not necessarily the case, and it can then be extremely difficult for a person’s family or friends to make decisions on their behalf without formal authority.
We see significant costs, time and energy being expended by families, which could have otherwise been avoided had a person put in place formal arrangements to set out their final wishes or appoint a person to make decisions on their behalf if or when they became unable to do so. We recommend arranging an appointment with us to discuss making a Will and Enduring Power of Attorney to avoid unnecessary costs or angst in the future. Contact us on 07 3262 6122.